I practice law -- criminal defense, civil liberties, and academic freedom/student rights cases. I'm a four-decade columnist and contributor to the Boston Phoenix, an alternative weekly, as well as an occasional contributor to The National Law Journal, Massachusetts Lawyers Weekly, The Wall Street Journal, The Boston Globe, and elsewhere. My books include Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009) and The Shadow University: The Betrayal of Liberty on America's Campuses (Harper Perennial, 1999; co-authored with Alan C. Kors). In 1999, Kors and I co-founded the Foundation for Individual Rights in Education (FIRE; www.thefire.org), a 501(c)(3) dedicated to the defense of individual liberties on campus. I live in Cambridge, Massachusetts with my wife, Elsa Dorfman, a portrait photographer.

10/06/2011 @ 10:14AM4,468 views

Obama Crosses the Rubicon: The Killing of Anwar al-Awlaki

If sunlight truly is the best disinfectant, how diseased must our national security state have become? Nearly ten years after the rushed and largely unread Patriot Act was made law, the United States has entered into a new realm of secrecy, as a constitutional law professor turned President has brought the state’s secrets provisions to their logical conclusion: he has targeted and killed American citizens based entirely upon information he refuses to make public or submit to a duly established body or tribunal. The President’s move was as unprecedented as it was unnecessary, and rightfully makes many wonder not if we are at the precipice of a slippery slope, but rather how far down that dune we have fallen, and whether we will ever be able to scramble back up.

On September 30th, 2011, a barrage of hellfire missiles in northern Yemen destroyed the caravan carrying Anwar al-Awlaki, a United States citizen and allegedly a leading propagandist for Al Qaeda. Al-Awlaki has repeatedly denounced the United States, decried American actions, preached Jihad, and otherwise encouraged the killing of Americans. He was a likely traitor to the United States who quite vocally supported, both in word and, seemingly, action, America’s worst enemy. There can be little doubt that he earned the title of enemy and the status of being targeted.

He was also not the only likely traitor in the car. Accompanying him was Samir Khan, an American citizen raised in comfortable middle class environs, who became radicalized and moved to Yemen to edit Al Qaeda’s English language magazine, “Inspire.” Known for such articles as “how to build a bomb in the kitchen of your mom,” Khan was, according to the New York Times, “proud to be a traitor to the United States.”

But when the United States’ predator drone, having lifted off from a secret base in the Yemen, took out its target last Friday, America entered into uncharted and dangerous territory in its fight against terror and traitors. Al-Awlaki and Khan were American citizens; while perhaps deserving of their fate—we do not know, for there has been no public fact-finding—they faced no court, no indictment, no duly constituted body of either house of Congress, and no normal prosecutorial oversight. The executive branch did not consult members of Congress, nor did it reach out to a judicial body. Glenn Greenwald of Salon.com decried the lack of “due process,” but he makes a mistake in his characterization: the problem is not a lack of due process, but rather a lack of any process at all. Due Process is a vague enough concept that it does not even require much in some situations: it guarantees us – all of us – only the “process that is due” in any given circumstance. Sometimes the Due-Process requirements are more stringent, at other times, less so. The question raised by this unsettling case is whether an American citizen is due any process at all, other than the agreement of the President and a few members of his national security establishment.Al-Awlaki was placed on a capture or kill list by the President of the United States, and Khan was in the car; that, to our Commander in Chief, was enough.

Despite their declarations to the contrary, the Executive Branch was aware that it was crossing a Rubicon with the al-Awlaki killing. While the administration claims that al-Awlaki was killed under the laws of war—in their words, “under the authority provided by Congress in its use of military force in the armed conflict with al-Qaeda”—as the Washington Post reported, the Justice Department wrote a secret memo that authorized al-Awlaki’s killing, a written opinion without which the CIA reportedlywould not have proceeded. That al-Awlaki could be seen as just another enemy combatant was hardly clear—at least, hardly clear to the Central Intelligence Agency. Rather, there must have been a series of fact-findings—an analysis of evidence, followed by a determination of policy—that took place in order to justify the hit. But what were those facts, and what exactly is the threshold for determining when, how, and why the President may target an American citizen without so much as a phone call to a judge or even the chairman of a relevant congressional committee?

We do not know, and the White House does not desire to tell us. After the assassination, White House Spokesman Jay Carney faced a number of troubling and difficult questions during his Press Briefing from ABC News’ Jake Tapper. The exchange (see link for video) begins in a straightforward manner:

Jake Tapper: You said that Awlaki was demonstrably and provably involved in operations. Do you plan on demonstrating or proving that?

Jay Carney: He is clearly, I mean provably might be a legal term, but I…think it has been well established, and it has certainly been the position of this administration and the previous administration, that he is, uh, was a leader in AQAP [Al Qaeda in the Arabian Peninsula], that AQAP was a definite threat, was operational, planned and carried out terrorist attacks that fortunately did not succeed but were extremely serious…including the would-be Christmas day bombing 2009…I wouldn’t know of any credible terrorist expert who would dispute the fact that he was a leader in Al Qaeda in the Arabian peninsula and that he was operationally involved in terrorist attacks against American interests and citizens.

Tapper, like a good reporter, asks a follow-up question. Carney’s response to the follow-up teeters on the edge of the bizarre:

Jake Tapper: Do you plan on bringing before the public any proof of these charges?

Jay Carney: Again, the question makes us, it has embedded within it assumptions about the circumstances of his death that I’m just not going to address.

Jake Tapper: How on earth, I really don’t understand, he’s dead, you were asserting that he had operational control, of the cargo plot, and the Abdulmutallab plot, he’s now dead. Can you show us, or the American people, or has a judge been shown…

Jay Carney: I, I’m not going to go any further than what I’ve said about the circumstances of his death, and the case against them, which you’re linking, and, and uh, I think that…

Jake Tapper: No, you, you said that he was responsible for these things

Jay Carney: Yes, but again…

Jake Tapper: Is there going to be any evidence presented?

Jay Carney: Uh, you know, I don’t have anything for you on that.

Tapper asks a question about evidence—about any proof of its claims that the executive branch might have been able to present to the public or even just to a judge—and Carney replies that he is not at liberty to discuss the “circumstances of [Awlaki]’s death.” The question, of course, has nothing at all to do with circumstances of death, but has to do with circumstances of evidence and of process; namely, what evidence must exist, and what process should be followed, that would allow for the President to put a hit out on an American citizen. Not to be out done, Tapper continues with his questions.

Jake Tapper: Do you not see at all, does the administration not see at all, that the President asserting that he has the right to kill an American citizen without due process, and that he’s not going to even explain why he thinks he has that right, is troublesome to some people?

Jay Carney: I wasn’t aware of any of the things that you said happening and again I’m not going to address the circumstances of Awlaki’s death. Again, it is an important fact that this terrorist who was actively plotting, had plotted in the past, and was actively plotting to attack Americans and American interests, is dead, but I’m not going to, from any angle, discuss the circumstances of his death.

After their long and combative exchange, Carney merely reiterates that “it is an important fact that this terrorist who was actively plotting” was killed, completely ignoring the very real questions about his premise: If Awlaki was involved with these terrorist attacks, where is the evidence, and who has seen it? And what does it mean when, in reply to a question about evidence justifying an attack, the administration remains secretive in the name of “the circumstances of the death.” What on earth does one have to do with the other?

The answer, of course, is nothing, and as we showed in a recent post here on September 9th, if Carney were under oath when asked these questions, he could be indicted, under existing vague and broad federal criminal laws, and convicted of obstruction of justice. Carney’s reply represents only an attempt to invoke a state secret in order to avoid answering an embarrassing question; with national security on the line, the thinking goes, secrets save lives. The United States may very well have good reason not to discuss the locations of the secret CIA air bases (that everybody seems to know about) somewhere in the Yemeni desert; that is, it has reason to avoid discussing the actual military “circumstances of Awlaki’s death.” But by linking discussions of proving Awlaki’s connection to terror attacks with the secret air base, Carney, Obama, and the rest of the executive can avoid, in the name of national security, saying anything of substance except “we got him.” The argument becomes increasingly nonsensical when we remember thatCongress has already created a top-secret national security court under the Foreign Intelligence Surveillance Act (FISA), which, theoretically, could review the government’s evidence in total secrecy and either approve, or reject, the application to assassinate an American citizen.

Supporters of the administration’s position may argue that al-Awlaki was an enemy combatant, and that his citizenship became irrelevant as soon as he stepped on the battlefield. Those who make that claim miss the point; in the asymmetrical, indefinable war on terror, we often do not know who the combatants are, and where the battlefield on any given day will be. We need evidence to prove that somebody is a dangerous terrorist, rather than a radical cleric and hateful citizen practicing his first amendment rightsbut on foreign soil. Traitors who joined the NaziSS wore uniforms and fought on front lines; such cannot be said for al-Awlaki and his companion Samir Khan. As the Washington Post reported, it was only after we blew up al-Awlaki’s motorcade that the Obama Administration publicly claimed that al-Awlaki was the “external operations chief for al-Qaeda in the Arabian Peninsula.”

But we are loathe to make empty criticisms without any suggested recourse. In a recent article by Christopher Hitchens on Slate.com, Hitchens argues that “those who protest the killing of Anwar al-Awlaki have to say what they would have done instead.” Far from blindly supporting America’s actions, Hitchens points to the disconcerting interplay between security and rights: despite the discomfort many may feel about the President’s actions, Awlaki seemed to be an imminent threat, and a rogue’s gallery of failed jihadists claimed him as an inspiration. What else could have been done?

To Hitchens we reply that there were any number of actions which the executive could have taken that would have lent some form of process to the profoundly consequential targeted killing of an American citizen. As we have noted above, perhaps the executive could have approached a FISA court,which is given the express authority for administering secret warrants for the surveillance of US citizens, and which is under no obligation to disclose the evidence presented by the Department of Justice. Or the President could have consulted the Senate and sought approval from an Intelligence committee. Or, as has been suggested elsewhere, the Department of Justice could have tried al-Awlaki in absentia, an extraordinary measure, but one lending at least some process to the killing. Other solutions may have been possiblewithout the expenditure of much time and resources (and for which sufficient time clearly was available in view of the duration of this surveillance mission). But the President pursued none of them, proclaiming for the Executive an expanded power that would make the framers of the constitution shudder. We learn about the importance of checks and balances in grade school; one would hope that the constitutional law professor who has become President would consider them as well. And for those who say that such moves would have been indulged in for appearance’s sake alone, the response is that due process of law is as much about the appearance of law and order as it is about the substance.

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1) How can the President invoke his powers under the “laws of war” when no declaration of war has been made?

2 What happens when Iran (or China or Russia or any other country) gets drones?. What happens when they sign whatever the appropriate documents are to have whomever it is that they see as a threat killed? What if that person is American? Do we claim the right to kill people by executive order but deny it to others? Perhaps our claim is that only the US government can kill US citizens with drones.

Its interesting that a debate over a US citizen being killed without due process raises concerns; whereas, with Osama Bin Laden it seems justifiable. Where was the evidence to connect Bin Laden to 9/11? Even the FBI director Mueller said there was not sufficient evidence to convict him. The FBI websites underlying text for his Most Wanted Profile read “In connection to the assault on the World Trade Center”. Killing any human being without due process should be a main issue. Yet after 10 years of the abstract War on Terror, the mantra has over-taken most American sensibilities.

Usama Bin Laden is wanted in connection with the August 7, 1998, bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. These attacks killed over 200 people. In addition, Bin Laden is a suspect in other terrorist attacks throughout the world.

Actually…as you can see no connection to 9/11. Yet the GWOT mantra has convinced 99% of Americans that he was the key operational perpetrator…..